Krebsbach v. Trinity Hosps., Inc.

• Citation: 938 N.W.2d 133
• Decision Date: 27 January 2020
• Docket Number: No. 20190096,20190096
• Parties: Mark KREBSBACH individually and as the Personal Representative of the Estate of Krystal Krebsbach as the surviving husband of Krystal Krebsbach, Plaintiff and Appellant and ManorCare of Minot, ND, LLC d/b/a ManorCare Health Services, and HCR III Healthcare, LLC, Plaintiffs v. TRINITY HOSPITALS, INC. and Trinity Health, Inc., Defendants and Appellees
• Court: United States State Supreme Court of North Dakota

938 N.W.2d 133

Mark KREBSBACH individually and as the Personal Representative of the Estate of Krystal Krebsbach as the surviving husband of Krystal Krebsbach, Plaintiff and Appellant

and

ManorCare of Minot, ND, LLC d/b/a ManorCare Health Services, and HCR III Healthcare, LLC, Plaintiffs

v.TRINITY HOSPITALS, INC. and Trinity Health, Inc., Defendants and Appellees

No. 20190096

Supreme Court of North Dakota.

Filed January 27, 2020

Randall J. Bakke (argued) and Bradley N. Wiederholt (appeared), Bismarck, ND, for plaintiff and appellant Mark Krebsbach.

Matt A. Paulson (argued) and Randall S. Hanson (appeared), Grand Forks, ND, for defendants and appellees.

Crothers, Justice.

[¶1] Mark Krebsbach appeals a district court judgment dismissing his lawsuit against Trinity Hospital relating to medical services provided to his wife. The court dismissed Krebsbach’s action after a special master appointed by the court concluded the two-year statute of limitations for medical malpractice applied to Krebsbach’s action. The special master also concluded the action was barred because Krebsbach had notice of Trinity’s possible negligence more than two years before bringing his lawsuit. We affirm.

I

[¶2] Krebsbach’s wife, Krystal, died in June 2016. In September 2013 she was diagnosed with hepatitis C

while a patient at the ManorCare nursing home in Minot. Krystal Krebsbach’s diagnosis occurred during a hepatitis C outbreak in the Minot area.

[¶3] In September 2016 Krebsbach moved to intervene in a lawsuit with other plaintiffs against Trinity related to the hepatitis C

outbreak. The district court granted Krebsbach’s motion in December 2016. Krebsbach’s complaint against Trinity alleged negligence, fraud, deceit and unlawful sales and advertising practices. Krebsbach claimed negligence and misconduct by Trinity’s staff and management caused Krystal Krebsbach’s hepatitis C. Krebsbach alleged Trinity engaged in actual fraud or deceit by misrepresenting the competency of its care providers and withholding information about its employees’ theft or misuse of drugs (known as drug diversion) and needle reuse. Krebsbach asserted Krystal Krebsbach relied on Trinity’s misrepresentations and allowed Trinity to provide her with phlebotomy services, which caused her to contract hepatitis C.

[¶4] Krebsbach’s negligence claims relating to Trinity’s phlebotomy services and primarily focused on a phlebotomist referred to as Employee A. Krebsbach claimed Employee A had a history of needle reuse and contributed to the hepatitis C

outbreak because she drew blood from all of the patients infected with the outbreak strain of hepatitis C. Krebsbach asserted Trinity’s failure to properly train, supervise and discipline Employee A caused injuries and damages to him and his wife.

[¶5] Trinity moved to dismiss Krebsbach’s complaint, arguing he failed to allege any facts suggesting Trinity was required to disclose to Krystal Krebsbach alleged complaints about Trinity’s phlebotomy services. A special master appointed by the district court under N.D.R.Civ.P. 53 dismissed Krebsbach’s fraud, deceit and unlawful sales and advertising practices claims because Krebsbach did not allege any facts requiring a duty of disclosure by Trinity.

[¶6] Trinity moved for summary judgment, seeking the dismissal of Krebsbach’s negligence claims. The special master granted the motion, concluding the two-year statute of limitations for medical malpractice under N.D.C.C. § 28-01-18(3) applied to Krebsbach’s negligence claims. The special master concluded Krebsbach’s claims were barred because he sued more than two years after information was made available to him establishing Trinity’s possible negligence. After objection by Krebsbach, the district court agreed with the special master’s decisions and entered a judgment dismissing Krebsbach’s lawsuit.

II

[¶7] This Court’s standard of review for summary judgments is well established:

"Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record."

Pennington v. Cont'l Res., Inc. , 2019 ND 228, ¶ 6, 932 N.W.2d 897 (quoting Horob v. Zavanna, LLC , 2016 ND 168, ¶ 8, 883 N.W.2d 855 ).

[¶8] Motions for judgment on the pleadings are governed by N.D.R.Civ.P. 12(c). In reviewing a district court’s dismissal of a complaint after a judgment on the pleadings under N.D.R.Civ.P. 12(c), we have said:

"[W]e recognize that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court’s inquiry is directed to whether or not the allegations constitute a statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets forth the requirements for pleading a claim and calls for a short and plain statement of the claim showing that the pleader is entitled to relief. The complaint is to be construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true. The motion for dismissal of the complaint should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted."

Nelson v. McAlester Fuel Co. , 2017 ND 49, ¶ 20, 891 N.W.2d 126 (quoting Kouba v. State , 2004 ND 186, ¶ 5, 687 N.W.2d 466 ). We review a court’s decision to grant judgment on the pleadings de novo. Nelson , at ¶ 20.

III

[¶9] Krebsbach argues the special master and district court erred in concluding the two-year statute of limitations for medical malpractice applied to his negligence claims against Trinity. He also claims the special master and district court wrongfully concluded he was on notice of Trinity’s possible negligence more than two years before he sued Trinity.

A

[¶10] Under N.D.C.C. § 28-01-18(3), a malpractice action "must be commenced within two years after the claim for relief has accrued." This Court has defined "malpractice" as "professional negligence." Jilek v. Berger Elec., Inc., 441 N.W.2d 660, 661 (N.D. 1989).

"Malpractice is the failure of one rendering professional services to exercise the degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession, which results in injury, loss, or damage to the recipient of those services or to those entitled to rely upon them."

Beaudoin v. S. Texas Blood & Tissue Ctr. , 2004 ND 49, ¶ 8, 676 N.W.2d 103 (citing Johnson v. Haugland, 303 N.W.2d 533, 538 (N.D. 1981) ).

[¶11] Krebsbach claims the six-year statute of limitations under N.D.C.C. § 28-01-16 applies to his negligence claims against Trinity. He asserts Trinity was negligent in its selection, training and supervision of Employee A. He contends Employee A’s substandard phlebotomy practices and Trinity’s failure to have proper drug diversion protocol caused Krystal Krebsbach’s hepatitis C

.

[¶12] The actual nature of a plaintiff’s action determines what statute of limitations applies. Sime v. Tvenge Assocs. Architects & Planners, P.C. , 488 N.W.2d 606, 609 (N.D. 1992). In a malpractice action, the malpractice statute of limitations controls over statutes of limitations applicable to contract or other tort actions. Beaudoin , 2004 ND 49, ¶ 9, 676 N.W.2d 103. A plaintiff "cannot escape the confines of the statute of limitations for malpractice actions by simply couching the complaint in terms of ordinary negligence." Sime , at 609. "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of ... science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience." Beaudoin , at ¶ 9 (quoting Sime, at 609 ).

[¶13] Krebsbach’s complaint alleged Trinity caused his wife to contract hepatitis C

because Trinity and its staff failed to meet the applicable standards of care:

"Trinity owes a duty to its current and former patients, including but not limited to Krystal Krebsbach, to provide medical treatment and services that meet the applicable standard of care. This duty includes the obligation to protect these patients from diseases like hepatitis C

by exercising reasonable care under the circumstances, including using proper infection control procedures and preventing drug diversion, and by following all applicable laws, rules, regulations, industry standards, and professional guidelines."

Krebsbach further alleged Trinity breached its duty to his wife, and the breach caused her to contract hepatitis C

.

[¶14] Krebsbach relies on Jilek to support his argument that the six-year statute of limitations for general negligence under N.D.C.C. § 28-01-16 should apply. In Jilek , 441 N.W.2d at 662-63, this Court decided whether negligence by an electrician was governed by the two-year malpractice statute of limitations or by the general six-year statute. This Court distinguished between a profession and a trade, and "conclude[d] that the...